Contracts and Capabilities: An Evolutionary Perspective on the Autonomy-Paternalism Debate

University of Cambridge - Centre for Business Research (CBR); European Corporate Governance Institute (ECGI); University of Cambridge - Faculty of Law

Date Written: October 22, 2010

Abstract

An evolutionary conception of contract law is suggested as a basis for assessing claims made in the autonomy-paternalism debate. Paternalism forms one part – although by no means the whole – of a discriminating approach to contract enforcement. Selective enforcement is a long-standing feature of contract law systems, which have developed alongside the emergence of market-based economies in liberal democratic societies. Contractual regulation of this kind can be justified in normative terms by reference to capability theory. Markets are significant capability-enhancing institutions, but their effect depends on complementary regulatory mechanisms, including some of those commonly (if not always accurately) termed ‘paternalistic’.

Register to save articles toyour library

Paper statistics

Related eJournals

Erasmus Law Review

Subscribe to this free journal for more curated articles on this topic

FOLLOWERS

1,015

PAPERS

375

This Journal is curated by:

Michiel van der Wolf at Erasmus University Rotterdam (EUR) - Erasmus School of Law, Xandra E. Kramer at Erasmus University Rotterdam (EUR), Erasmus School of Law, Kristin Henrard at Erasmus School of Law, Harriet Schelhaas at Erasmus University Rotterdam (EUR) - Erasmus School of Law, Peter Mascini at Erasmus University Rotterdam (EUR) - Erasmus School of Law, Margaux Raynaud at Erasmus University Rotterdam - Erasmus School of Law, Frank M. Weerman at Erasmus University Rotterdam (EUR)